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Original poster

Can you do unpaid voluntary work on SMP

41 replies

iamloading · 09/02/2018 14:49

Hi all,
Hoping for some urgent advice (been on hold to work and pensions for 40 mins so far!)
I am on mat leave at the moment receiving SMP but have been doing a bit of unpaid voluntary work here and there.
Anyway I received a threatening letter from my (horrible) company today saying that I will need to pay back the whole of my SMP as I worked elsewhere. Is this the case, I simply didn't realise that a bit of volunteering would have this affect!
Thanks

OP posts:
JellySlice · 09/02/2018 14:51

How would they know?

Cuppaand2biscuits · 09/02/2018 14:53

I volunteered for Surestart whilst receiving SMP. It was on going though from before pregnancy, don't know if that makes a difference?

Original poster
iamloading · 09/02/2018 14:58

No idea how they know but I've still received a threatening legal letter. Any normal company wouldn't be bothered - it's nothing to do with my normal job. But just need to know my legal rights now if anyone can help?

OP posts:
georgeoutside · 09/02/2018 15:07

You are bound by the terms of your employment contract whilst on SMP ado if that states no working for anyone else then they are well within their rights.

Original poster
iamloading · 09/02/2018 15:36

My contract doesn't state no working for anyone else, just no working for a competitor which this isn't

OP posts:
georgeoutside · 09/02/2018 15:43

Than ask them on what grounds they think you need to pay it back. Quite the part of your contract that allows you to do this work.

georgeoutside · 09/02/2018 15:43

*quote

flowery · 09/02/2018 15:48

Hmm. I've had a look at the SMP technical guidance and it says the following:

"Your SMP will stop if after the baby is born, but before the end of the Maternity Pay Period, you work for an employer who did not employ you in the qualifying week. It is your responsibility to tell the employer paying you SMP about your new job. You must do this as soon as possible, and make sure you return any SMP payment you get that covers the week you started work and any part of the period after you resumed work.
If you do any work in a self-employed capacity during your MPP, then such work will not affect your SMP."

You will see there is an exemption for self-employed work but not voluntary work, which seems daft.

winterwonderly · 09/02/2018 15:51

I'm sure it's something to do with national insurance contributions. So you can do self employed or voluntary work, but can't be an employee for another employer.

georgeoutside · 09/02/2018 15:54

This isn't anything to do with the SMP guidance. This is an employer and contract issue.

flowery · 09/02/2018 16:03

"This isn't anything to do with the SMP guidance. This is an employer and contract issue."

Confused What makes you think that? There's no relevant clause in the OPs contract and the employer hasn't claimed there is. They've said as she's worked elsewhere she needs to pay back her SMP, and that is the case.

The rules of SMP are not governed by the employment contract in the way the terms and conditions of enhanced maternity pay would be - an employer doesn't get to put something in their employment contract allowing them to reclaim SMP if they don't like something the employee does. They can only reclaim SMP if one of the statutory rules of SMP says so. And if an employee starts working elsewhere, SMP is repayable.

JellySlice · 09/02/2018 16:11

But if it's unpaid voluntary is it 'work'?

italiancortado · 09/02/2018 16:24

What makes you think that

The fact that the letter is from her employer. That is a pretty strong indication that it is the employer who has issue with it.

iklboo · 09/02/2018 16:35

I've found this on Maternity Action

If you work for an employer who is not liable to pay Class 1 National Insurance contributions, such as voluntary work or self-employment, your SMP is not affected.

strongandlong · 09/02/2018 16:39

I think the paragraph flowery quite implies paid work ("an employer" - the org has not employed her).

flowery · 09/02/2018 16:40

"The fact that the letter is from her employer. That is a pretty strong indication that it is the employer who has issue with it."

Of course it's the employer who has issue with it, who said otherwise? They're the ones paying the SMP, of course they have issue with doing so if the OP has done something which means they were not obliged to pay it.

If the OP wasn't entitled to it, and the employer was therefore not supposed to pay it, the element of SMP the employer has been able to recover from HMRC wasn't due to them either.

Just because the employer is the one with the issue doesn't mean it's a contractual thing.

italiancortado · 09/02/2018 16:43

It IS a contractual thing. It is regarding the OP doing other 'work' whilst employed by them. If the contract doesn't prevent it then they are wrong to demand the SMP is paid back.

winterwonderly · 09/02/2018 17:04

The employer doesn't pay SMP, HMRC does. It just gets paid via your employer.

italiancortado · 09/02/2018 17:07

Yes I know that. But you are still bound by the terms of your employment contract whilst on maternity leave (money aside). If that contact stipulates that OP cannot work for anyone else whilst employed by them; she could be liable to repay. However, OP says there is nothing in the contract that says that so as I advised earlier she should quote their contract back to them and show them that she CAN do this without being penalised.

Figgygal · 09/02/2018 17:11

Speak to pregnant then screwed for advice

But yes if there's nothing in your contract or company policies and you've not received any payment they haven't got a leg to stand on. In fact I'd respond to them with the facts ask them how they even know is be thinking grievance too based on their being heavy handed and intrusive.

I assume you want to go back?

winterwonderly · 09/02/2018 17:12

Well there's no way that HMRC check what is stipulated in everyone's contract when paying SMP to the employer. They just pay it if you meet the standard eligibility criteria for SMP. Employers can make extra stipulations on any additional maternity pay they give, if any.

Figgygal · 09/02/2018 17:12

And yes they've likely not even paid it as most companies claim cost back from Hmrc

I'd be very disappointed to receive a letter like that and it would undermine my trust in then as an employer are they usually asshats?

italiancortado · 09/02/2018 17:15

Well there's no way that HMRC check what is stipulated in everyone's contract when paying SMP to the employer.

I don't think anyone was suggesting that they do?

winterwonderly · 09/02/2018 17:23

@italiancortado sorry if I misread your post. I thought that's what you meant when you said the OP could be liable to repay her SMP if her contract said that she couldn't work for anyone else.

Original poster
iamloading · 09/02/2018 17:23

Thank you all for your views, I'm out and about at the moment so can't read them in the detail I need to in order to respond just now. One thing just to say is that I handed my notice in 3 weeks ago, I said that I was happy to leave earlier so they don't have to pay SMP for three months for no reason, but they said that they wouldn't let me leave any earlier. I think me leaving is what's annoyed them.

OP posts:
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